More Benchslaps -- But Mild Ones -- From Judge Richard Posner

Judge Posner channels Mr. Spock: "So [your client] is not logical, you're saying."

Judge Richard Posner isn’t trying to entertain us. He just does.

When he benchslaps prominent Biglaw partners or government lawyers fighting marriage equality, he’s not trying to be funny. He’s just trying to understand the facts of a case or get to the bottom of the legal arguments — and he’s, well, maybe not as diplomatic as some other judges in going about his business.

Let’s check out the latest argument where Judge Posner snarked on hapless counsel….

Here’s a report from Daniel Fisher of Forbes:

Lawyers trying to defend a class-action settlement with Radio Shack endured withering — and sometimes hilarious — questioning before the Seventh Circuit Court of Appeals as judges questioned why the lawyers should be paid $1 million in cash for a deal that gives their clients coupons worth a fraction as much.

Attorneys with Markoff Leinberger in Chicago sued Radio Shack after it installed point-of-sale terminals that printed the expiration dates of credit cards in violation of federal law, even though nobody suffered any monetary loss. Radio Shack offered $1 million in cash fees for the lawyers and $10 coupons for their clients, and Markoff Leinberger took the deal.

Sound a bit fishy to you? You’re not alone. Ted Frank, aka the Class Action Avenger, objects to the settlement terms too.

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And Judge Posner doesn’t sound like a fan, at least based on the argument:

Posner: Why coupons? Why not cash?

Markoff: Frankly it comes down to what you can get a defendant to pay. And in this case they were entirely unwilling –

Posner: Well, they paid $1 million in attorneys fees, pretty generous.

Markoff: Yes, that’s true, judge.

Posner: Well, presumably if you didn’t have $1 million in attorneys fees they would have paid more to the class.

Markoff: Uh, I don’t know that.

Posner: Well, they just care about the bottom line, they don’t care how it divides between attorneys fees and coupons.

Markoff: I’m not sure that’s true, judge.

Posner: Why not? Why would a defendant care about anything but how much this is going to cost me?

Markoff: Logically that makes sense. But I can tell you in this case, that was not the case.

Posner: So Radio Shack is not logical, you’re saying.

And that, ladies and gentlemen, is why they’re on the brink of bankruptcy.

P.S. That’s a highlight, but the full oral argument recording contains additional fun stuff (including the appearance of Ted Frank at 9:40 and 54:55; he fares far better before the panel).

UPDATE (7:30 p.m.): Judge Posner wasn’t the only one channeling Mr. Spock. Check out Ted Frank’s very entertaining reply brief.

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Radio Shack Coupon Settlement Gets Static From Appeals-Court Judges [Daniel Fisher / Forbes]
In Quest For More Capital, RadioShack Warns Of Bankruptcy [Forbes]